Tuesday, March 29, 2016

Unreasonable Verdict

R. v. McCracken, 2016 ONCA 228:

[23] The
question for an appellate court assessing an unreasonable verdict argument is
whether, on the whole of the evidence, the verdict is one that a properly
instructed jury, acting judicially, could reasonably have rendered: R.
v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v.
Yebes, [1987] 2 S.C.R. 168, at p. 186. The reviewing court is required to
“review, analyse and, within the limits of appellate disadvantage, weigh the
evidence”: Biniaris, at para. 36.

[24] The
issue is not whether the reviewing court would have convicted the appellant,
but whether the evidence, viewed through the lens of judicial experience, was
reasonably capable of supporting a finding of guilt. The reviewing court must
ask itself “whether the jury’s verdict is supportable on any reasonable
view of the evidence and whether proper judicial fact-finding applied to the
evidence precludes the conclusion reached by the jury”
(emphasis in original): R. v. W.H., 2013 SCC 22, [2013] 2
S.C.R. 180, at paras. 2, 26-28.

[25] Even
at the best of times, identification evidence is subject to well-known and
inherent frailties: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d)
501, at paras. 36-40; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283,
at paras. 19-20 and 31-33. Honest and convincing, but mistaken, eyewitness
identification, has been the source of wrongful convictions because it appears
deceptively reliable. Particular vigilance is therefore required in relation to
this type of evidence. Although familiarity may enhance the reliability of
evidence, the same cautions and concerns apply to recognition evidence: R.
v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.